Professor Steven Peers gave evidence.

Welcome. This session can last until 3 o’clock. Will you formally introduce yourself for the record before the questioning begins?

Professor Peers:

Thank you for inviting me. I am Professor Steve Peers of the University of Essex. I am also involved with the UK in a Changing Europe project, looking in particular at immigration aspects of Brexit.

Q Professor, you have highlighted certain discrepancies between the treatment of EU citizens who are already in the UK in the event that we reach a deal, and their treatment in the event of a no-deal Brexit. Will you run through those discrepancies?

Professor Peers:

One distinction is that, as I understand it, according to the Government’s policy paper, there would not be a right of appeal in a no-deal scenario, whereas under the withdrawal agreement there would be. Another discrepancy relates to how long and how extensive family reunion rights would be under the withdrawal agreement compared with a no-deal scenario; they would be truncated in a no-deal scenario.

There is a more recent Government policy paper about what will happen to people who come in during the period after Brexit day in the event of no deal. Obviously, in that case, there would not be a fully-fledged transition period. The Government’s plan is to have a short-term permit and for people then to be rolled over into the general immigration system if they want to renew it. That is obviously quite different from the position people would be in if the withdrawal agreement were ratified, in which case the transition period free movement rights would continue for them as acquired rights. Also, under the withdrawal agreement, the transition period can be extended by one or two years, whereas, as far as we know, the Government are not, at least at the moment, planning for their own unilateral transition period to be extended.

Q Clause 4(2) gives the Secretary of State powers to modify

“any provision made by or under primary legislation passed before, or in the same Session as, this Act” and “retained direct EU legislation”. Could the Government use that power to roll back their commitment to EU citizens?

Professor Peers:

As I understand it, yes, as the Bill stands, because schedule 1 removes a whole series of existing provisions that would otherwise be retained EU law of various types. If you give the Government that sort of power to amend quite generally—more generally than under the withdrawal Act—legislation relating to the acquired rights of EU citizens, what is the limit on what they can do? It would be useful for Parliament to consider whether there ought to be statutory protection of at least some core rights acquired by EU citizens and others, such as family members and Turkish, Swiss and Norwegian citizens, in the period of EU membership so that appendix EU to the immigration rules cannot simply be done away with or robbed of key protections by statutory instrument in a very simplified way.

Q Could the Government use powers in the Bill to amend immigration legislation affecting non-EU nationals?

Professor Peers:

As I understand the Bill, it is focused on ending the free movement of EU citizens and issues related to it. The EU-Swiss agreement is also mentioned in schedule 1. There is not much in the Bill that addresses the White Paper issues about future immigration policy. I assume the Government will want either to introduce another Bill or to use the immigration rules to develop that future policy to deal with issues such as the cap—£30,000, or whatever it might be—for workers and non-EU citizens. As far as I know—I do not know whether the Government have been clear about this—that is an issue for the future. The Bill does not deal with that as such.

Q As it is currently drafted, the Bill contains no protections for EU citizens already resident in the UK. Would there be stronger protection for EU citizens if the Government’s commitment were laid out in primary legislation?

Professor Peers:

Yes, of course, because then it would take a further Act of Parliament to amend it, assuming there was no other Henry VIII power lying around that could be used to repeal it. Assuming that does not happen, you need an Act of Parliament to change an Act of Parliament, so you would have to go through that process. The Government might, of course, have a majority in the Commons and the Lords to proceed with that, but certainly it is a longer process involving more public discussion. Bills get more scrutiny than statutory instruments and are usually more open to public debate than the statutory instruments process is. It is not an absolute guarantee, but it is a relative guarantee if you put something in primary legislation compared with secondary legislation.

Q Finally, what concerns do you have about the ability of EU citizens in the UK and UK citizens in the EU to accumulate social security rights if we leave the EU without a deal? Clause 5 of the Bill grants Henry VIII powers to the Secretary of State to make broad changes to social security co-ordination. Do you think those rights can be gained without primary legislation?

Professor Peers:

Again, it might be more useful to have some kind of statutory protection, at least of basic things such as acquired rights to social security as of Brexit day; obviously, British pensioners or would-be pensioners in the EU would be interested in that, as well as EU citizens who live or have lived here and might return to their original home on retirement. That would be useful as well.

Of course, this is more complicated, because a separate Act has recently passed Parliament that sets out separate powers to negotiate on social security. In this case, with social security, the Commission has proposed EU legislation—I think at the urging of member states—to keep acquired rights in relation to social security on the EU side. Depending on the details of how that gets negotiated, obviously very quickly, on the EU side, that might be something it would be useful to match.

Even if we do not have a ring-fenced agreement on all these issues, which would be ideal, would it not be helpful for everyone concerned to at least match the arrangements on social security and acquired rights? Perhaps that could be a statutory commitment and the Minister could come along and adopt a statutory instrument to match whatever the EU legislation is at the end of the day, which will not be too long from now, I think. That would be a good way to look at it going forward.

Q Professor Peers, you have written a lot about free movement, including that of UK citizens in the EU27. A former constituent of mine contacted me recently about the situation in Austria; the Austrian Government have just published their scheme for expats, and it is €210 per person for a long-term residence permit, which seemed to me quite an extraordinary amount of money. Can you set out your concerns for UK citizens in the EU27 during this period?

Professor Peers:

Yes. There are a number of concerns. First, it would have been better either to have a ring-fenced agreement covering people on both sides and cutting out that part of the withdrawal agreement, which is not particularly controversial, or to have EU legislation similar to the social security proposal that has already been tabled, which unilaterally and uniformly protects UK citizens’ rights across the whole European Union. For whatever reason, the Commission did not go ahead with that, but it would have been far better to have done that.

What we have instead is different countries doing different things. Some aspects of UK citizens’ rights in the EU27 are governed by EU law on non-EU citizens, and long-term residence is an example of that, but there are parallel national laws on long-term residence too. I do not know the details of the Austrian law offhand, but the EU law on long-term residence has case law saying that you should not impose disproportionate fees, so someone might want to challenge the €210 as a disproportionate fee. However, if that is a national law on long-term residence, you do not have an EU law argument about it, so there will be a lot of non-uniform degrees of protection of UK citizens.

It would be better to have standard rules, because a lot of those citizens would be looking at national long-term residence; EU long-term residence is not necessarily used that much. Some of them will face the difficulties of paying high fees. There may of course be other difficulties in applying. There may be earnings thresholds, or other criteria to be met in relation to health insurance or being employed and so on, to get long-term resident status under national law. Those could be difficult to meet.

There might be issues to do with family reunion. Certainly if the family member has not been registered yet, or if they come after Brexit day, different rules might apply to them. It might be quite challenging to bring families in, or have them to stay. If there is a separation or divorce that could raise issues, and people would be in a more difficult position than they would under EU legislation.

Anyone who does not yet have the right to long-term residence could be in an even more difficult position, depending on how restrictive national law is in relation to how they qualify for the right to stay. Would they be given something like pre-settled status, which we will have in the UK, on the basis that they are on their way to getting long-term resident status, or, instead, a short-term permit? It might be that that could not be renewed, or could not be renewed on the same basis, or would not let the person change jobs, or would not let a student look for work—all things that people would have as an acquired right if the withdrawal agreement is passed.

People who are not registered under the national system for registering foreign citizens will have difficulty in any event. They might have difficulties for that reason alone with qualifying under a national system of getting residence permits. If they do not get a residence permit at some point, their life will be more difficult in terms of travel, access to benefits or whatever it might be.

Those points are a broad indication. They will be different in each country and the details will differ, but they give a broad idea of the sorts of problems UK citizens might face.

Q I would like to follow up on Afzal Khan’s questions about social security. I think you said that one way in which the Government might want to use the powers in clause 5 would be to mirror any changes that the EU might make, to ensure that there would be a continuing set of reciprocal arrangements. However, the explanatory notes to the Bill say:

“This clause allows the Government (and/or, where appropriate, a devolved authority) to make regulations to implement any new policies regarding co-ordination of social security.”

Do you think that might be too broad a power for the Government to have?

Professor Peers:

It does seem like an awfully broad power, yes. It would be useful, I think, for Parliament to insist on some sort of statutory limits or guidelines in primary legislation as to how the Government might use their power. One of them could be a requirement, or a push, at least, towards mirroring whatever the EU ends up with, since we know the plan is to have EU legislation on this issue, and it does seem likely to go through, as member states wanted it. That would be one way forward.

I do not know whether there are other issues as well, that Parliament might want to constrain the Government on, somewhat; but it seems like a reasonable argument, that the Government should not have unlimited powers and some constraints should be set by primary legislation.

Q The explanatory notes also suggest that regulations could be made under the clause to make different provision for different categories of persons. Do you have any views on that power, and how Ministers might exercise it, and any constraints Parliament might think of to be placed on that?

Professor Peers:

I imagine that you might end up with different social security treaties being negotiated with different countries. There are not always arrangements with other countries to uprate pensions, for instance, whereas with the EU, at least until now, it has been the case. I suppose some treaties would cover that and some would not. It makes a big difference over time to pensioners who are not getting their British pensions uprated. Again, that might be something you want to address in the legislation, to specifically require pensions to be uprated, for instance.

Q For those who have contributed to the British social security system and then have expectations as pensioners?

Professor Peers:

Yes.

Finally, what do you think will be the impact on labour market mobility of the possibility of different social security co-ordination arrangements in the future?

Professor Peers:

People are always going to ask themselves, “What are my pension issues if I move to another country?”—or, of course, if they move to a different job in the same country. Moving from a better pension to not such a great pension might counteract any pay increase someone might get, for instance. People have to think about that. Perhaps people in their 20s do not do that so much, but as we get on we start to think more about these things.

Q Those who are more highly paid, and therefore expect a higher pension, might think about it more as well.

Professor Peers:

Of course that is a possibility, although I am sure that people on every pay level are concerned about pensions. It is bound to factor into people’s considerations, although it is hard to quantify. I am sure that someone has studied it in detail, but I have not. However, it will undoubtedly be a factor, and it is one reason why the first regulation the EU ever adopted, in 1958, was on social security co-ordination. That was precisely the reason why they did it—plus, it was a treaty that was ready to be copied into regulation. There has been so much case law on it over the years because of the importance of social security co-ordination to labour mobility.

Q Can I ask about clause 2, which relates to Irish citizens? I think everyone welcomes the inclusion of the clause. However, we heard evidence earlier this week that there are perhaps other issues for Irish nationals that we should cover, and that the clause does not go far enough to protect their position. Do you have any thoughts on that?

Professor Peers:

First of all, I agree that it is useful to have the clause there. I think there was a general assumption in some quarters that we did not need to say anything on Irish citizens, because they were covered, although my colleague in Leicester, Bernard Ryan, questioned that over the years. It is now there in the legislation, and it is useful to have.

However, having looked at that recently, I think the question of family reunion might arise. Are Irish citizens covered by the general appendix EU rules on family reunion as the Government intend to implement them in event of no deal, where there would be a shorter period in which the EU rules on family reunion apply? Does their being covered by those rules depend on whether they apply for settled status? There might be an answer to that that I have missed, but that question certainly arose for me.

That is not just about people who have non-EU citizens as family members, about people who have EU citizens as family members. After a no-deal Brexit, EU citizens would be coming here on a limited basis, according to the Government’s plans on limited three-year permits. Someone might be in a better position if they are here as a family member, so it would be useful to know whether such people would end up being covered as family members. Perhaps that will be clearer when we get further changes to the immigration rules to implement the no-deal plans. I have checked this afternoon, but I have not seen that implemented yet. It would be useful to see it.

Q Turning to the settled status scheme, you spoke earlier about trying to put at least the central elements of the settled status scheme and the rights for the 3 million, to use that expression, in the Bill. People have also given evidence that the system should be declaratory in nature, rather than people having to apply for something before they have any rights. Do you agree with that?

Professor Peers:

In an ideal world, yes. However, given that it is the Government’s intention to end free movement, the difficulty will be how to distinguish between EU citizens who are here on a free movement basis before Brexit day—or the end of whatever further period we might have—and those who come after that period and who do not have ongoing free movement rights. How do you distinguish between them if there is not at least some system of registration?

By way of a compromise, it might be useful to make it clearer that settled status is a registration system, rather than an application system, because I think that a lot of people were unsettled by its being described as an application system. I know that the withdrawal agreement says that. It also says that people will have to be given settled status if they meet the criteria, so there is not really any discretion for the Government. Given that, why not simply describe it as a registration system? Otherwise, a lot of people will be concerned about what they see as an implied threat. If we are going to go ahead with it, which seems quite likely, a useful way forward would be to reconceive it.

Q Are you concerned, as things stand, about this cut-off point? Are you concerned that however well the Home Office does in registering as many folk as possible, tens of thousands—if not hundreds of thousands— will miss that deadline? Can you see a case for scrapping the deadline altogether, or for having some other compromise to prevent, for want of a better word, a Windrush-style situation from arising again?

Professor Peers:

There is a case for having either a longer deadline or no deadline at all, or having some kind of fairly general excuse clause that gives the Home Office a lot of obligations—not necessarily discretion—to accept late applications for quite an open-ended series of reasons. Obviously, there will be people who do not know about it or understand it. I am in contact with people who know the system well and are campaigning about it and so on, but I realise that that is a bubble. There are a lot of EU citizens outside it who will not understand it very well or follow the details, or who will shake their heads and ignore it in the way you might ignore something like an ominous-looking bill. It would be much better to be as flexible as possible about subsequent future registration and various methods of forgiveness and excuses that people might need to invoke.

My question is about the fact that the Home Office is saying it will grant settled status to someone for two years; I was going to ask whether you thought that was feasible, but I think you have answered that. Do you think the two years the Home Office is granting everybody is feasible? Do you think this can be done in that short space of timeQ ?

Professor Peers:

It is quite hard to say. This is an app and an electronic process, but that is still a lot of people to go through the electronic process. I do not know about the technological feasibility of it. The difficulty will be with the people who do not get settled status, the people who do not apply and the people who get pre-settled status and argue that they should have had settled status. There will be those categories of people, and there will be some overlap with people who come in either during the transition period, if we have a withdrawal agreement, or during the unilateral, more truncated transition period if we have a no-deal scenario.

In that case, especially if there is no deal, I can imagine employers or landlords being confused about the situation: are these people necessarily entitled to be here or not? There will be people who could have had settled status but do not have it yet because they have not replied or they are waiting for a reply, as well as people who have a more limited leave to stay and more limited rights. Ultimately, there could be some confusion about telling those two groups apart, and we want to avoid a scenario where employers, landlords and banks start to become nervous about renting to or hiring people who are entitled to be here, especially because for a while we will have a category of people who are entitled to be here but do not have the documentation.

That is the background against which we could end up with a Windrush scenario, because at some point there would be greater demands for documentation and some of those people will not have got it or will not then be able to get it. If they have been self-employed, for instance, they may not have the records of all the work they did on an odd-job basis that would easily satisfy the system that they are entitled to be here.

Q From the evidence we have heard from you in the course of the past 25 minutes or so, it is clear that the decision to end free movement following the outcome of the 2016 referendum has painted a complicated picture. Was that always an inevitable outcome, once we knew the result of the referendum?

Professor Peers:

It was, obviously, the Government’s choice to interpret the referendum results as an end to free movement. There were other options, such as signing up to the same sort of relationship as Norway or Switzerland have with the European Union, or trying to negotiate another variation on that—although I do not know how willing the European Union would have been to negotiate a variation other than the Norwegian version of free movement minus a little bit. Given that free movement was so frequently mentioned during the referendum, the Government felt that was politically necessary.

It is inevitable that we will get into legal complications once we end free movement, because we have a big category of people who have been here on one basis and we are saying that they will all have to transfer to another basis. We are talking about 3 million people, and equivalent significant numbers of UK citizens in the EU. That is bound to be an issue.

If there are no other questions, I thank you very much indeed for the time you have spent with us. If you should remember something that you wish you had raised, please write to us. Thank you.